The Kashmir Bar Association has pleaded that rights of pellet victims can’t be ignored and excessive use of pellets violates Article 21 (Right to life) of the Constitution.
Pleading the Bar’s case before a division bench of ChiefJustice Gita Mittal and Justice Rashid Ali Dar, senior Advocate Z A Shah arguedthat “punitive damages are to be paid to the victims if the Government respondsto the unarmed crowds by using pellets disproportionately as it violatesArticle 21 and rights of the victims can’t be ignored.”
“The way the State has responded to control the crowds byusing disproportionate force against these unarmed mobs is breach of Article 21(Right to life) of the Constitution. Ifthere is breach of Article 21, then the Government has to pay punitive damagesto the persons who have suffered,” Shah said.
The bench has been hearing the Public Interest Litigation(PIL) by the Bar Association on regular basis after Supreme Court directed theCourt to decide within six weeks on reliefs – rehabilitation, treatment andcompensation – to the pellet victims
He questioned whether the Government was free to use anymechanism as means of crowed control and if the Government was free to use anyweaponry while dealing with protests. “Assuming that Government can choose any weaponry as means of crowdcontrol, whether any procedure is to be followed in the actual use of theweaponry,” he argued.
The senior lawyer said that while using a gun to shoot at acrowd, permission of the magistrate was necessary in keeping with the law.
“In the same manner while using pellet guns which also causedeath when used from a short range, permission of a magistrate is mandatory,”he said.
In case stone pelters, Shah said, violates ordinary law bythrowing stones at security forces, response has to be proportional. “For this purpose accountability isnecessary,” he pleaded.
“When the state is using the pellet guns which comprises ofa cartridge with sharp edged lead pellets which disperse at high speed in alldirections, it causes extensive damage to the human body. The pellets tend todamage the soft tissues like eye and cause permanent blindness” he said.
“It is to be seen whether the agitating mob is causingdamage to the property. Even if it causes damage, it does not mean they deserveto be killed by using disproportionate force of pellet,” Shah said. “A gunkills a person, a stone cannot. So to disperse a mob holding stones, gun cannotbe used as a crowed control means”.
Shah told the Court that use of pellets by security forceskilled people in Kashmir, left many blinded and others maimed, in the recentyears. “Even a 19 month-old child Hiba (from Pulwama) was hit with a pellet in herright eye,” he said.
In response to the submissions made by Shah, the ChiefJustice Mittal observed: “The stone pelters are trying to save the holed upmilitants and are culpable of offences”.
The senior advocate told the Court that the power of lawenforcing agencies while dealing with the crowds was a “regulated power”.
“The legislature has not left it open to the Government todeal with the crowds on their discretion,” Shah said.
The provisions of criminal Procedure Code (CrPC), he said,like section 127 to 134 control powers of the State.
He pointed out that in the event any weaponry was to beused, permission of the executive magistrate was necessary. “No police officercould take any such decision except for a mild lathi-charge,” he argued.
In this regard, Shah said, no material had been produced inthe case by the official respondents which clearly leads to the conclusion thatuse of the pellet guns which have caused death and permanent body injuries was”done without authority” of any magistrate, and fundamental rights of victimsunder Article 21 were “duly violated”.